Pretrial Screening and The Grand Jury Flashcards
Preliminary Hearings
- Typically, after suspect is arrested, police/prosecutor files criminal complaint: “written statement of the essential facts constituting the offense charged”
- Misdemeanor or felony – if FELONY: complaint will be replaced by formal document aka “indictment” – sets forth in some detail the crimes charges: indictment is a pleading approved by the grand jury
- Fed Rule of Crim Pro: 51 post arrest, and post first appearance before a judge, suspect is entitled to a preliminary hearing on charges set forth in the complaint – no more than 14 days after first appearance if D is in custody, no more than 21 days if he is not in custody
- Preliminary hearing = for court to determine if there is “probable cause to believe than an offense has been committed and the D committed it”
Grand Juries
Grand Juries TODAY: 1 – witnesses who are called before a federal grand jury NOT permitted to bring a lawyer, 2 – limited reach of the constitutional grand jury clause: grand jury protections DO NOT apply to the states, see Hurtado v. CA, (1884) (more than ½ of states do not require a grand jury or at least do not require it in all serious cases)
-Prosecutor has virtually complete control over grand jury room, she decides which cases to pursue, which evidence to subpoena, witnesses to call and what questions to ask
-Info that grand jurors are asked to consider is not subject to cross-exam or constrained by the rules of evidence
-Serve 2 functions:
- 1. Investigating: Can require witnesses, give testimony, and compel witnesses to produce documents and other physical evidence
- 2. Screening: Grand jury must approve the prosecutors proposed criminal charges
- Force prosecutors to present prima facie case, to body of citizens, 16/23 citizens to judge whether the evidence acquired suggests probable cause.
- Protects against prosecutors trying to overreach with convictions.
- Keep in mind: Grand Jury does not need probable cause to search for evidence
- Grand juries are typically investigating white collar, complex crimes.
2) Other Quirks:
- If you are called before grand jury – you do NOT have right to counsel in the grand jury room. (Doesn’t mean you can’t consult with an attorney – but while you’re in the box – hinges on witnesses’ ability in the moment to determine if question can be incriminating)
- Person does not need to be mirandized in front of a grand jury (However, DOJ typically informs the witness of the basis of Miranda)
- “grand jury will indict a ham sandwich” if instructed to do so by the prosecutor
- Grand Juries are SECRECT defendants have no way of knowing what prosecutor did or said
- No double jeopardy for purposes of Grandy Jury – they can investigate you again
Costello v. US (Grand Jury)
Costello indicted for willfully attempting to evade payment of income taxes. He moved to dismiss when prosecution finished case – only evidence before grand jury was “hearsay” since the three officers (govt witnesses) had no firsthand knowledge of the transaction upon which their computation were based.
indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charges on the merits 5a requires nothing more
- Court has adopted a very hands off approach to reviewing grand jury indictments
- As long as grand jury returns a facially valid indictment – it will not be disturbed
- What does “Unbiased” mean? – no constitutional problem w empaneling of members or any suggestion that the grand jury was rubber stamping bias motivation of prosecutor
NOTES ON COSTELLO:
- Issue in Costello was wh an indictment could be based wholly on evidence that would normally have been inadmissible hearsay at trial
o Case has come to stand for the proposition that grand jury decisions to indict are largely unreviewable on the merits
Review of decisions to indict would turn into mini-trial prior to the real trial, and would thus be too administratively costly
Review of decisions to indict would compromise the grand jury’s independence
- Costello makes grand juries’ decisions to indict independent of judicial control
- Costello rule eliminated almost all challenges to the substance of the indictment
o Maj: an indictment on its face is sufficient as long as it is returned by a “legally constituted and unbiased” grand jury
o Grand jurors are not expected to be free of prior info or inclinations about a criminal manner – historically speaking they were expected to bring info that they already knew about a case w them to grand jury room
US v. Williams (Grand Jury)
respondent indicted by a fed grand jury on seven counts of “knowingly making a false statement or report . . . for the purpose of influencing . . . the action [of a federally insured financial institution], in violation of 18 USC 1014. Williams demanded that the D Ct dismiss the indictment, alleging that the govt had failed to fulfill its obligation under the 10th cir prior decision in US v Page, to present “substantial exculpatory evidence” to the grand jury. Argued that the evidence which the govt chose not to present to grand jury—Williams’ general ledger and tax returns & testimony in contemporaneous ch 11 bankruptcy proceedings—disclosure that, for tax purposes and otherwise, he had regularly accounted for the “notes receivable” Argued they contradicted an intent to mislead the banks, negating an essential elements of charged offense.
Issue: wh a D Ct may dismiss an otherwise valid indictment bc the Govt failed to disclose to the grand jury “substantial exculpatory evidence” in its possession
Holding: courts have no authority to prescribe such duty pursuant to their inherent supervisory authority over their own proceedings; courts do not have supervisory power over grand juries. GJS are an independent and separate institution.
- Williams two arguments are under
o (1) supervisory powers, and
Scalia answers by pointing to grand jury independence from court system
o (2) 5a common law that would define and limit grand jury roles
Scalia responds by noting that grand juries have tradtl been permitted to indict based on whatever evidence satisfied them + prosecutors cannot be obliged to inform grand juries of things that grand juries themselves are free to ignore (pros obligation cannot exceed obligation of grand jurors themselves)
- GRAND JURY = assess whether there is sufficient evidence to bring criminal charges – if grand jury had to compel prosecution to present exculpatory evidence, grand jury would no longer be an accusatory body but rather an adjudicatory body grand jury is a separate institution from courts and the courts do not preside over its functioning - The rules governing a grand jury are not as stringent as those the courts
- Grand jury can launch an investigation simply to ensure no laws are being broken and it needs no court authorization to do so
- GRAND JURY’S ARE ACCUSATORY AND NOT ADJUDICATORY
- Scalia sees no problem w/ bias in the grand jury – a balanced assessment in fron to f the grand jury is NOT required and we will not require it today
- Grand jury can issue indictment as IT SEES FIT, not as the court sees fit
Costello & Williams Court reaffirms HANDS OFF APPROACH w/r/t indictment, the quantum of evidence, and the activities of prosecutors in front of grand jury’s
Grand Jury Investigations (Grand Jury Secrecy)
1) Fed Rule of Crim Pro: Rule 6(d): [presence] Describes who may be present in the room while the grand jury is in session:
- Jurors
- Prosecutor
- Witness
- Court Reporter
- Interpreter (if necessary)
(Everyone but jurors and interpreter leave once deliberations begin) – neither press nor public nor person being investigated (target) or his lawyer nor judge are allowed to enter grand jury room while in session
2) Fed Rule of Crim Pro: Rule 6(e): [secrecy]
-Swears those present to secrecy, except witnesses – free to discuss their grand jury testimony w/ anyone, including the target of the investigation
-Secrecy extends to “a matter occurring before the grand jury”
-Violations can lead to contempt of court
-No time limit on grand jury secrecy – in theory they last forever
3) Keep in mind: Witnesses are not subject to the secrecy narrative
-Witnesses can go out and say what they said/questions what they asked prosecutor cannot respond!
-By finding out questions: Target can learn whether they are being targeted and extent
4) Five Reasons for Grand Jury Secrecy
- 1) Doesn’t allow the targets from gaining knowledge that then may lead to target escaping jurisdiction
- 2) Keeping secrecy insulates jurors from public pressure b/c this effects the ability to judge evidence
- 3) Prevents perjury in later proceedings Can’t adjust testimony to fit first witness’s story.
- 4) If target has reputational damage, having a grand jury proceeding that’s secret might incentivize broader compliance with subpoenas
- 5) Protecting reputation of the accused/the innocent
In re Sealed Case no. 99-3091 (Grand Jury Secrecy)
– while the Senate was trying Pres Clinton on articles of impeachment, the NY Times published a front-page article captioned “Starr is Weighing Whether to Indict Sitting President.” Office of the President (White House) and Clinton jointly filed in d ct a motion for an order to show cause why OIC (Office of Indep Counsel), or the individuals therein, should be held in contempt for disclosing grand jury material in violation of FRCrimP 6(e).
- In re Motions of Dow Jones & Co. – “matter occurring before the GJ” (6(e) material) = “not only what has occurred and what is occurring, but also what is likely to occur” including “the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.”
- In re Sealed Case No. 99-3091 – SCOTUS noted that there’s a difference b/w difference b/w statements by a prosecutor’s office w/r/t its own investigation and statements w/r/t the GJ’s investigation. Prosecutors’ statements about their investigations implicate 6(e) only when they reveal GJ matters:
- Disclosure of prosecutor’s desire to indict someone isn’t a GJ matter—it’s just a preference of the prosecutor. Maybe to disclose, but again, not a GJ matter.
- Disclosure that someone testified before a GJ isn’t 6(e) material when it’s widespread public knowledge. (Here, President Clinton revealed it himself on national TV.)
- Disclosure that someone is the target of a GJ isn’t 6(e) material when, again, it’s widespread public knowledge. (Again, Clinton revealed it himself.)
“Where the general public is already aware off the info contained in the prosecutor’s statement, there is no add’l harm in the prosecutor referring to such info.”
Holding: the disclosures made in the NY Times article do not constitute a prima facie violation of 6e
- Prosecutors own investigation versus Grand Jury investigation – it was their OWN info on wh they wanted to pursue an indictment, not an actual decision to do so [desire versus decision; not actually before the grand jury]
Takeaways for Prosecutorial Revelations:
- Matters occurring before a grand jury – Rule 6(e)
- What has occurred, what is occurring, what is likely to occur, including the “identities of witnesses or jurors, substance of testimony, transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like . . .” Motions of Dow Jones, DC Cir
- Must not “elucidate the inner works of the grand jury.” In re Sealed Case
o Prosectuor statements cannot directly reveal grand jury matters
Testimony: violates rule if refers to testimony actually presented to the grand jury or likely to occur (including identities)
Strategy: violates rule if refers to delivered or anticipated testimony
Opinion about liability: only violates IF reveals info from proceedings themselves
Where the general public is already aware of the info contained in the prosecutor’s statement, there is no addtl harm in the prosecutor referring to such info
